D. KRISHNA VENI AND ANR. ETC.versusSTATE OF ORISSA AND ORS.

A                    D. KRISHNA VENI AND ANR. ETC.
                                   v.
                        STATE OF ORISSA AND ORS.

                               JANUARY 19, 1995
B
             [K. RAMASWAMY AND N. VENKATACHALA, JJ.)

           Land Acquisition Act, 1894-Ss. 18, 28-A-Compensation-Award-
    Reference under S.18 availed of by the party-Whether could approach under
                                                                                   ---'
    S.28-A-Held : No, since the party has availed the remedy of reference-Bar
c   of res judicata also applicable.

         In respect of certain land acquisition, in addition to the compensa-
  tion to the land, the Collector awarded Rs. 80/- per fruit bearing tree and
  Rs. 60/- per non-fruit bearing tree as full value. On reference the award
D was confirmed by the Sub-Judge. The appellant did not prefer an appeal.          ~
  When the others filed appeal the High Court had enhanced the compen-
  sation to Rs. 990/- for fruit bearing tree and to Rs. 650/-. for non-fruit
  bearing tree. The appellants filed an application under s.28-A of the Land
  Acquisition Act, which was dismissed and it was later confirmed by the
  High Court. Hence these appeals.
E
          Dismissing the appeal, this Court

            HELD : The appellants have failed to avail of the remedy of appeal
    and having already availed the remedy of reference under S.18 of the Land      "~

F   Acquisition Act, they are not entitled to seek redetermination of the
    compensation on the basis of award of the High Court granting enhanced
    compensation. Section 28-A would apply to the claimants who received the
    compensation without protest and faced with statutory bar of reference
    and would not apply to those who had already availed the remedy of
    reference and got no benefit or lesser benefit thereunder. Equally the bar
G   of res judicata would clearly apply to the appellants. The application under
    s.28 is, therefore, not maintainable. [489-H, 490-A-B]                         ~

          Scheduled Castes Co-operative Land Owning Society Ltd. Bhatinda v.
    Union of India and Ors., AIR (1991) SC 738 and Babua Ram and Ors. v.
H   State of U.P. andAnr., JT (1994) 7 SC 377, relied on.
                                        488
i

                        D.K. VENiv. STATEOFORISSA                        489

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1696 of A
    1995 etc.

          From the Judgment and Order dated 8.2.93 of the Orissa High Court
    in O.J.C. No. 965 of 1992.

         Y.P. Rao for the Appellants.                                          B
         AK. Panda for the Respondents.

         The following Order of the Court was delivered :

         Leave granted.                                                        c
           Notification under s.4(1) of the Land Acquisition Act 1 of 1894 for
    short 'the Act' was published on August 11, 1971 acquiring about 700 acres
    of land in Golabandha Buxi Palli, Vikranipur in Ganjam Dist. of Orissa
    State. By award dated October 18, 1976, the Land Acquisition Officer
    determined the market value. On reference under s.18, the learned subor- D
    dinate judge confirmed the award of the Collector at the rate of Rs.80 per
    fruit bearing tree and Rs. 60 per nnn fruit bearing tree as full value in
    addition to the compensation of the land by his award and decree dated
    August 21, 1986. The appellant did not carry the matter in appeal. When
    others filed the appeal under s. 54 of the Act, the High Court had
    enhanced the compensation to the fruit bearing tree at Rs. 990/- and Rs. E
    650/- for non fruit bearing tree by its judgment and decree dated December
    12, 1989. Therefore, the appellants filed an application under s.28-A of the
    Land Acquisition Act on May 23, 1990 for redetermination. The Land
    Acquisition Officer dismissed the application and thereafter the High
    Court by its order dated February 8, 1993 confirmed the same in O.J.C.
    No. 965/92. Thus this appeal by Special leave.
                                                                                 F

          It is contended that when the High Court awarded higher compen-
    sation by operation of s.28-A of the Land Acquisition Act, the appellants
    also are entitled to the same benefit. The point is now squarely covered by
    two judgments of this Court in Scheduled Castes Co-operative Land Owning G
    Society Ltd., Bhatinda v. Union of India & Ors., reported in AIR 1991 SC
    738 and Babua Ram & Ors. v. State of U.P. & Anr., reported in JT 1994 (7)
    377. Therefore, the appellants having failed to avail of the remedy of appeal
    and having already availed the remedy of reference under s.18, they are
    not entitled to seek redetermination of the compensation on the basis of
    award of the High Court granting enhanced compensation. Section 28-A H
    490                    SUPREME COURT REPORTS                 [1995) 1 S.C.R.

A would apply to the claimants who received the compensation without
  protest and faced with statutory bar of reference and would not apply to
  those who had already availed the remedy of reference and got no benefit
  or lesser benefit thereunder. Equally the bar of res judicata clearly would
  apply to the appellants. The application under s.28-A is, therefore, not
  maintainable. The Collector and the High Court rightly refused to .grant
B the amount on par with the judgment of the High Court.
          The appeal is accordingly dismissed. No costs.

          Leave granted.

c         The notification under section 4(1) of the Land Acquisition Act was
   published on August 11, 1971 acquiring about 700 acres of land in
   Golabandha Buxi Palli, Vikrampur in Ganjam District of Orissa State. By
   his award dt. June 22, 1974, the Land Acquisition Officer determined the
  market value. On reference under section 18, the learned Subordinate
D Judge confirmed the award of the Collector by his award and decree dt.
  January 31, 1985. The appellants did not carry the matter in appeal. When
   others filed the appeal under section 54 of the Land Acquisition Act
  before the High Court, the High Court enhanced the compensation to the
   fruit bearing trees at Rs. 990/- and Rs. 650/- for non fruit bearing trees by
   its judgment dt. April 21, 1992. Thereafter the appellants filed application
E under section 26-A of the Land Acquisition Act on November 21, 1992 for
  .redetermination. The Land Acquisition Officer dismissed the application
   and thereof, the High Court by its order dt. April 30, 1993 confirmed the
   same in 0.J.C.No. 24/93. Thus this appeal by special leave.

          In is contended that when the High Court awarded higher compen-
F sation by operation of section 28-A of the Land Acquisition Act, the
    appellants also are entitled to the same benefit. The point is now squarely
    covered by two judgments of this Court in Scheduled Castes Co-Operative
    Land Owning Society Ltd. Bhatinda v. Union of India & Ors., reported in
    AIR 1991 SC 738 and Babua Ram & Ors. v. State of U.P. & Anr. reported
G in JT 1994(7) SC 377. Therefore, the application under sec. 28-A is not
    maintainable. The Collector and the High Court rightly refused to grant
  . the amount on par with the Judgment of this Court .

          The appeal is accordingly dismissed. No costs.

H G.N.                                                       Appeal dismissed.